IMPORTANT POINT
Medical negligence must be proved by expert evidence.

Vinay Kumar, Member—Shri M.K. Khambatta filed this original complaint in November 2000. The complaint is against Venkatrama Nursing Home, Vishakapatnam (OP-1), its proprietor Dr. A. Dayasagar (OP-2) and Dr. C. Dharma Rao, the Orthopedic Surgeon of the Nursing Home (OP-3).

2. Proceedings before this Commission show that OP-3, having failed to respond to the notices from the Commission, was set ex-parte on 12.5.2003. In 2009 the Commission was informed that OP-3 had passed away and therefore, the Complainant was directed to bring LRs of OP-3 on record. Notices were subsequently issued to them but elicited no response. In between, the Commission considered the request of both parties to cross-examine each other. Accordingly, on 26.8.2004, Mr. Ravi Kumar Addl. District Judge (Retd.) was appointed as the Local Commissioner to record evidence. The Local Commissioner has recorded the two cross-examinations on 15th and 16th December, 2004, which are available in Part II of the record of this case.

3. The case, as seen from the complaint petition and the affidavit evidence of the complainant, is that the Complainant, an employee of M/s. Tata Iron and Steel Company Limited. (TISCO) Jamshedpur, was travelling by train through Vishakapatnam on 24.1.1998. While walking on the platform at Vishakapatnam station, Complainant’s left leg suddenly snapped from the tibia. He could not even stand and fell down. He was taken to the Railway Hospital, who advised him to consult some nursing home, as the Railway Hospital did not have the required infrastructure. The Complainant was admitted to OP-1 Nursing Home and was assured best possible treatment by OP-2. He was attended to by OP-3 /Dr. C. Dharma Rao, who advised him to undergo a corrective surgery for proper reunion of the bone. The operation was performed by OP-3 on 25.1.1998 in OP-1 Nursing Home. He was discharged on 9.2.1998 and was advised by OP-3 to take the post-operative care and treatment at Tata Memorial Hospital in Jamshedpur. The Complainant became medically fit and resumed his duties on 21.4.1998.

4. Allegedly, the problem returned in July, 1999, with severe pain and swelling at the same spot in the leg where the surgery had been performed at OP-1. Fresh X-ray of the leg showed that the implant was broken and tibia was cracked. The Complainant was admitted to Apollo Hospital, Chennai for treatment on 14.8.1999. Another surgery was performed on 17.8.1999 to remove the broken implant and to put Illizarov Ring Fixator on the leg.

5. The allegations levelled in the complaint petition against the OPs, are that—

(a) Opposite Party Nos. 2 & 3 failed and neglected to diagnose properly, which aggravated the problems of the Complainant. (Para 30).

(b) Sub-standard quality of implant material was used in the surgery for fixing the fracture. (para 13).

(c) The OPs claimed to have high qualification but indulged in professional and intentional negligence. Otherwise, failed or improper implant could not have occurred (para 14).

(d) In the discharge-slip no weight bearing was advised and there was no mention of position of the fracture, whether open or compound, displaced or undisplaced. This shows medical negligence on the part of the OPs.

(e) The report of Dr. Rajgopal Krishnan of Apollo Chennai Hospital reveals non-union of the left tibia with failed implant. This shows that Dr. C. Dharma Rao was not competent to perform this kind of operation.

6. According to the affidavit evidence of the Complainant, he was physically fit and normal when the rail journey was commenced on 23.1.1998. The next morning when the train reached Vishakapatnam, he got down to buy some snacks at the platform. It is stated that while proceeding towards the vendor his left leg suddenly snapped from the tibia and he could not walk even a single step and fell down. He was admitted to Venkatraman Nursing Home on the advice of the Railway Hospital.

7. It is alleged that OP-3, who examined him on the same day i.e. 24.